State v. Stanley
State v. Stanley
Opinion of the Court
Defendant was charged with unlawful possession of a controlled substance. ORS 475.992(4)(b). He appeals the trial court’s denial of his motion to suppress evidence of methamphetamine. We reverse.
In January 1993, Springfield police officer Kemper responded to a dispatch call regarding suspicious activities at the Glenwood Market. One of the store clerks had reported to the police that she was concerned about two men, whom she described as “very high on something,” who had been on the premises for about an hour. One of the men had entered the store and asked her where the police were located and how often they came by the store. The clerk believed that the men were planning to rob the store and expressed concern for her safety.
When Kemper arrived, she saw two men standing at a pay phone near the store entrance. One of the men, McCoy, was using the phone, and the other, defendant, was standing nearby holding a briefcase. Kemper noticed that defendant was wearing a pager and was holding an open spiral notebook, on which was written a long fist of first names and corresponding phone numbers. Based on her training and experience, she testified that these activities “were consistent with persons buying or selling controlled substances.” Kemper did not interrupt McCoy’s phone conversation, but asked defendant what he was doing at the store. She characterized his behavior as “very extreme.” Kemper testified that defendant’s eyes were extremely dilated and that they were “blinking and bouncing.” She said that he was agitated, that he could not stand still, and that his speech was so rapid that she could not understand what he was saying. She described defendant as the “most extreme case of stimulant intoxication that I have ever encountered.” McCoy displayed similar symptoms. Based on her training and experience, Kemper believed that both men were under the influence of a stimulant, such as methamphetamine, and that it was necessary to take them into custody to “detox” them.
Shortly after Kemper arrived at the market, another officer, Maloney, arrived. At that time, Kemper
While Kemper was talking with McCoy, Maloney approached defendant and immediately patted him down for weapons. Maloney testified that he was concerned for his safety, because he was responding to a possible robbery call and because, in his experience with robberies “the person either simulates or is armed.” During the pat-down, Maloney felt a metal container that did not feel like a weapon. He did not seize the container, but asked defendant, ‘Would you be willing to show me [the container]?” Defendant opened the container and revealed three prescription pills. Maloney did not seize the container or the pills and allowed defendant to place them back in his shirt pocket.
After Kemper placed McCoy in the patrol car, she joined Maloney and defendant. Maloney asked defendant if he would show Kemper the pills in the container. Defendant agreed to do so and opened his jacket to get the container. As defendant opened his jacket, both officers testified that they recognized a strong odor of methamphetamine. Kemper said that because the odor was strong enough to bum her nose, she concluded that defendant had not just been in contact with methamphetamine, but was presently in possession of the substance. She testified that it had been her experience “100 percent of the time” that when she encountered an odor that strong, the person was actually in possession of methamphetamine. Kemper then placed defendant under arrest for possession of a controlled substance and searched him incident to that arrest. She found marijuana and methamphetamine.
Defendant argues that the frisk of defendant was unlawful.
The state next argues that the frisk was justified as necessary for officer safety. ORS 131.625(1) authorizes a police officer, during the course of a lawful stop, to frisk a person for weapons if “the officer reasonably suspects that the person is armed and presently dangerous to the officer or other person present.” We have held, however, that in order to justify the frisk, the officer must articulate a particularized suspicion that the stopped person poses an
Here, the state asserts that the following facts support Maloney’s suspicion that defendant posed an immediate threat: (1) Maloney was confronted with a subject who appeared to be veiy intoxicated and hyper; (2) Maloney was responding to what he believed was a possible robbery attempt; (3) it was Maloney’s experience that people who commit robberies are often armed; and (4) Maloney knew that McCoy and defendant had questioned the store clerk about the whereabouts of the police.
In assessing whether there are sufficiently particularized facts to support an officer’s suspicion that the stopped person posed an immediate threat, we may consider only the information that the officer had at the time the frisk took place. ORS 131.605(4). The evidence here is that the first thing Maloney did after arriving on the scene was to walk over and frisk defendant. There is no evidence that Maloney observed defendant to be intoxicated or hyperactive, or that Kemper told Maloney of her observations before the frisk occurred. Accordingly, this case is distinguishable from other cases, such as State v. Smay, 118 Or App 31, 845 P2d 1294 (1993), on which the state relies, where the frisk was justified by the officer’s observations of a suspect’s nervous behavior.
The only remaining facts that support a suspicion that defendant posed an immediate threat are Maloney’s general concerns for safety in responding to a robbery call and his knowledge that one of the men had inquired about the whereabouts of the police. We are not unmindful of the legitimacy of an officer’s generalized concerns for safety in such circumstances, but that alone is not enough to justify a frisk. ORS 131.625(1) requires that there be particularized facts giving rise to the suspicion that a suspect poses an immediate threat. Such facts are lacking here. See Matthys, 106 Or App at 282. Thus, we conclude that the initial frisk of defendant was unlawful.
Unlawful police conduct
“it is apparent that the INS agent did not trade on or otherwise take advantage of the arrest to obtain defendant’s consent to the search. Indeed, there is absolutely nothing in the encounter between the agent and defendant that can be construed as exploitation of the purportedly unlawful arrest. The mere fact that, but for the arrest, the agent would not have been standing in the doorway of defendant’s apartment, in a position to ask defendant about drugs and guns, does not render the evidence discovered in the subsequent consent search inadmissible.” Id. at 41.
“The distinction * * * between voluntariness and exploitation is an important one.” Id. at 38. However, it is
In State v. Quinn, 290 Or 383, 623 P2d 630 (1981),
“defendant was unaware at the time he gave consent that the underwear had been found. That fact did not in any way affect defendant’s decision to give or withhold his consent. The next issue, therefore, is whether unlawful police activity which leads the police to seek defendant’s consent to search, but does not influence the defendant in giving that consent, taints the consent[.]
“[W]hen the police sought defendant’s consent to search, they did not do so by exploitation of that illegal discovery. Rather, the consent was sought and given by defendant for reasons entirely distinct from that primary illegality.” Id. at 394, 396.
By assessing the effect of the illegality on the defendant’s decision, the Quinn court grafted a voluntariness analysis onto an exploitation inquiry.
“The * * * conclusion [in Quinn] seems to me to approach being (and it may in fact be) unsupportable. So far as the Quinn opinion demonstrates, the officers would never have asked the defendant for permission to search the car, had it not been that their attention was directed to him and the car by the result of the earlier, illegal search. A more direct exploitation of illegal government activity would be difficult to posit.” Id. at 224 (emphasis supplied).
We agree that the proper inquiry is whether the unlawful conduct focused police attention on defendant and prompted the officers to seek his consent, regardless of his awareness of the illegal search or the subsequent discovery of incriminating evidence. Unlike a “voluntariness” analysis, which focuses on the person giving consent, the dispositive consideration in the “exploitation” inquiry is the prior illegality’s effect on the police. This is not the “but for” test rejected in Rodriguez, because the illegality must give police more than the opportunity to seek consent; it must also provide a reason for doing so.
This analysis is consistent with the holdings of Rodriguez, Williamson, and State v. Martin, 124 Or App 459, 863 P2d 1276 (1993), without entangling it with the
In Martin,
Based on the above analysis, we conclude that exploitation occurs when unlawful police conduct reveals information that focuses police attention on the defendant and prompts them either to seek the defendant’s consent or to ask questions leading to consent.
In this case, Maloney sought defendant’s consent on two occasions. The first occurred when Maloney asked defendant to show him the metal container after feeling it in defendant’s pocket during the illegal frisk. Defendant complied, opening the container and revealing “three prescription-type pills.” Maloney testified that he knew that prescription drugs are controlled substances and that defendant’s possession of those pills could have constituted a crime. Defendant then placed the container back in his pocket. The second request occurred when Maloney asked defendant to show the pills to Kemper.
We conclude that Maloney “exploited” his prior unlawful conduct in obtaining the first consent because there is “a direct connection” between asking defendant to
The dissent would find exploitation only where the unlawfully obtained information indicates “a defendant’s possible involvement in illegal activities.” 139 Or App at 539. Because the frisk here “revealed only an innocuous metal container,” the dissent would find no exploitation in obtaining the first consent. 139 Or App at 543.
We disagree that the information discovered must implicate the defendant’s possible involvement in “illegal activities.” Granted, some exploitation cases have involved
The dissent’s dissatisfaction with our analysis stems from what it perceives as “the uncertainty as to how to determine whether the information gained during the unlawful police conduct provided the reason for the officer’s request for consent to search.” 139 Or App at 540 (emphasis in original). That concern is unfounded. The inquiry we frame includes factual and legal elements whose resolution is not qualitatively different from, or more difficult than, other such questions that we routinely review.
The dissent nonetheless contends that, by ignoring the nature of the information revealed, our analysis is no different from the “but for” test rejected in Rodriquez, because “all consents given after unlawful police conduct could be the product of exploitation.” 139 Or App at 540 (emphasis in original). That is not true.
In both Rodriguez and Land, official misconduct did not invalidate the subsequently obtained consents because consent was requested for reasons independent of the prior unlawful conduct. See Rodriguez, 317 Or at 29 (INS agent apparently predisposed to ask for consent, regardless of allegedly illegal arrest); Land, 106 Or App at 137 (illegal entry did not prompt request for consent, because officers had detected marijuana odor before illegally entering defendant’s garage). Contrary to the dissent’s concerns, it is easy to imagine a situation in which police misconduct does not focus attention on a defendant or prompt officers to seek consent. See also State v. Mercado, 105 Or App 582, 584, 586, 805 P2d 744, rev den 311 Or 482 (1991) (no exploitation of allegedly illegal “stop” in obtaining consent, where trooper suspected defendant of drug trafficking before stop ever occurred).
Reversed and remanded for new trial.
Defendant also argues that the stop and frisk violated the Fourth Amendment of the United States Constitution. However, we decline to apply a federal constitutional analysis, because, in his motion to suppress, defendant relied exclusively on Article I, section 9, of the Oregon Constitution.
Defendant also argues that the stop was unlawful. However, in view of our determination that the frisk was unlawful, it is unnecessary to address that issue.
In 1995, the statute was renumbered at ORS 430.399.
Kemper testified that after her first contact with McCoy and defendant, she quickly decided to take them into custody for detoxification. However, there is no indication in the record that Kemper communicated this information to Maloney before he frisked defendant. Instead, Maloney testified that the first thing he did when he arrived on the scene was to frisk defendant for weapons.
Although defendant asserts, without elaboration, that “[t]he illegal frisk rendered involuntary defendant’s subsequent consent,” defendant grounds his invalid consent argument on Maloney’s alleged exploitation of the prior unlawful frisk. Thus, voluntariness of defendant’s consent is not at issue.
“Unlawful police conduct” means “an act by a government entity or its agent that violates a defendant’s rights under Article I, section 9, of the Oregon Constitution.” State v. Rodriguez, 317 Or 27, 38 n 12, 854 P2d 399 (1993).
In Williamson, the defendant consented to a search of his truck after police smelled marijuana and threatened to detain the truck while they obtained a warrant. 307 Or at 623. The consent was involuntary because the police “were trading on evidence that they had only by virtue of the unlawful roadblock,” causing the defendant “to weigh the consequences of consent” and thereby affecting his decision to consent. Id. at 626. The Rodriguez court also found exploitation in Williamson because the police were able to obtain consent “only by taking advantage of the unlawful roadblock and by telling the defendant that they would detain his vehicle.” Rodriguez, 317 Or at 41.
In Quinn, before asking for the defendant’s consent, police illegally searched his car and discovered women’s underwear, which, in turn, led to the defendant’s confession to murder. 290 Or at 387-89.
We perpetuated this error in State v. Jeffers, 125 Or App 596, 866 P2d 486 (1994), by relying on Quinn and focusing solely on the effect the illegal search had
Justice Gillette was the author of the majority opinion in Rodriguez.
See also State v. Lyman, 134 Or App 212, 214, 894 P2d 1219 (1995) (“exploitation occurs when officers ‘trade on’ information that is obtained as a result of an illegality, e.g., when officers make an unauthorized entry and observe something that prompts them to seek consent to search the premises”) (emphasis supplied); State v. Land, 106 Or App 131, 137, 806 P2d 1156 (1991) (no exploitation of unlawful entry because police smelled marijuana before entering and “did not observe anything that prompted them to seek defendant’s consent”) (emphasis supplied).
The agent was apparently predisposed to ask these questions before the arrest, considering that seven members of a regional drug and organized crime task force accompanied him to the defendant’s apartment. Rodriguez, 317 Or at 29.
In Martin, an officer illegally opened a Dristan tin taken from the defendant, discovered methamphetamine inside and asked the defendant if a paper bag found in his car contained “more drugs.” 124 Or App at 461-62. Defendant said it did, and consented to a search of the bag. Id. at 462.
At the suppression hearing, Maloney testified that defendant
“had a metal container on him and he showed me what was in it and he had some prescription pills.
“Q Is that something you had found in your pat-down search?
“A I had felt it but it didn’t feel like a weapon.
“Q So you didn’t seize it from him?
“A No.
“Q Did you ask him about it?
“A I asked him to see what was in it.
“Q Do you remember what you asked him?
“A The way I asked him was, “Would you be willing to show me?’
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“Q When you said, “Would you be willing to show me,’ what did he do?
“A He showed me the pills.”
Maloney further testified that
“When Officer Kemper came over * * * I asked [defendant] to show her the pills that he showed me because he had put them back in his pocket and he opened his coat to get the pills.”
Although the second consent revealed information implicating defendant in possible illegal activity (unlawful possession of controlled substances), the dissent finds no exploitation in securing that consent, apparently because it believes that the initial consent was lawful.
Concurring in Part
concurring in part; dissenting in part.
I agree with the majority’s conclusion that Maloney’s frisk of defendant was unlawful. However, because I believe that Maloney did not exploit his prior unlawful conduct in obtaining defendant’s consent to search, I would affirm the trial court’s denial of defendant’s motion to suppress.
The majority has done an excellent job of formulating the proper exploitation analysis under the existing case law, which is less than precise. I agree with the majority’s formulation to the extent that it concludes that exploitation occurs when the police, through unlawful conduct, obtain information that focuses their attention on the defendant and prompts them to seek consent to a search. My difference with the majority is in our understanding of what constitutes “prompting” under the test. In my view, the majority’s understanding of the term eliminates the distinction set forth in State v. Rodriguez, 317 Or 27, 854 P2d 399 (1993), between a mere “but for” causal connection and exploitation. Thus, the majority’s position threatens to eliminate the rule, embodied in State v. Kennedy, 290 Or 493, 624 P2d 99 (1981), that prior unlawful police conduct does not automatically render inadmissible any evidence discovered during a subsequent consent search.
In Rodriguez, the court explained the distinction between a mere causal connection and “exploitation”:
“Whether suppression is required in any such case will * * * depend on the nature of the connection between the unlawful police conduct and the evidence sought to be suppressed. As we have noted previously, evidence is subject to suppression in a criminal prosecution if it was ‘obtained in violation of a defendant’s rights under [Article I, section 9]’ State v. Davis, supra, 313 Or at 253 (emphasis supplied). Under that standard, there will have to be, at the very least, a causal connection between the unlawful police conduct and the evidence uncovered during the subsequent consent search * * *.
“A causal connection alone, however, still is not sufficient to require suppression. This court has rejected the so-called ‘but for’ test, which would require the suppression of any evidence that would not have been discovered ‘but for’ the unlawful conduct. State v. Quinn, 290 Or 383, 394-97, 623 P2d 630 (1981); State v. Kennedy, 290 Or 493, 500-01, 624 P2d 99 (1981). Thus, the fact that ‘but for’ the unlawful conduct, the police would not have been in a position to (for example) seek a person’s consent does not, in and of itself, render any evidence uncovered during the ensuing consent search inadmissible.
“In what circumstances, then, does unlawful police conduct render evidence obtained in a later consent search inadmissible, where the consent to the search is voluntary? We think that evidence obtained during such a search should be suppressed only in those cases where the police have exploited their prior unlawful conduct to obtain that consent. Only where such exploitation occurs can it be said*540 that the evidence discovered subsequently was ‘obtained in violation’ of a defendant’s rights under Article I, section 9.” Rodriguez, 317 Or at 39-40 (emphasis supplied).
As mentioned above, I think that the majority’s understanding of the exploitation analysis does away with the difference between mere “but for” causation and exploitation. The majority attempts to explain the difference by stating that “but for” causation “give[s] police * * * the opportunity to seek consent,” while prompting, as part of the exploitation test, “provide[s] a reason for doing so.” Stanley, 139 Or App at 534 (emphasis in original). That explanation is unsatisfactory, however, because it does little more than answer the question with another question. We are still left with uncertainty as to how to determine whether the information gained during the unlawful police conduct provided the reason for the officer’s request for consent to search. Unfortunately, the majority’s application of the exploitation test to the facts here fails to demonstrate how that inquiry is to be made. The majority’s application of the exploitation test provides no guidance as to when permissible “but for” causation becomes exploitative “prompting.”
That lack of guidance threatens to do more than just produce confusion for the bench and bar; it also threatens to eviscerate the rule, embodied in Kennedy, that prior unlawful police conduct does not automatically render inadmissible any evidence discovered during a subsequent consent search. The majority states:
“[W]e conclude that the illegal frisk revealed information — the container’s presence in defendant’s pocket — that focused Maloney’s attention on defendant and prompted him to request consent to search.” Stanley, 139 Or App at 536.
The majority clearly implies that a consent to search will be the result of exploitation anytime that it follows unlawful police conduct that has yielded any information. However, it is difficult to imagine an encounter between a police officer and a defendant that will not yield some information to the officer’s trained eye. By ignoring the need to analyze the nature of that information and the likely role that it played in the officer’s decision to seek consent to a search,
In my view, to make a principled determination as to whether information gained during unlawful conduct “prompted” the officer’s request for consent, the analysis must take into consideration the nature of the information. Exploitation has been found consistently when the unlawful police conduct disclosed information that, under the circumstances,
State v. Martin, 124 Or App 459, 863 P2d 1276 (1993), is illustrative. In that case, an officer noticed a parked car in a convenience store parking lot. The defendant was slumped over the steering wheel, but the engine was running and the lights were on. Out of concern for the defendant’s safety, the officer approached the car and knocked on the window. When the defendant did not
The trial court held, and we agreed, that the officer’s opening of the Dristan tin was unlawful. The defendant then argued that the evidence of the methamphetamine found in the bag must be suppressed, because the officer obtained it by exploiting her prior unlawful conduct. We agreed:
“In this case, the officer had discovered methamphetamine dining the illegal search incident to arrest. Defendant was handcuffed, placed in the back of a patrol car and had been asked several questions about the contents of the Dristan tin. The officer then confronted him with the paper bag and asked if it contained more drugs. There is a direct connection between asking that question and the fact that the officer had illegally discovered methamphetamine in the earlier search. We conclude that the methamphetamine and scales discovered in the bag must be suppressed, because the police obtained them by trading on evidence that they had only as a result of the illegal search incident to arrest.” Id. at 467 (emphasis in original).
In Martin, the officer’s exploitation of her prior unlawful conduct was apparent. Before asking the defendant for consent to search the paper bag and whether it contained “more drugs,” the officer had illegally seized
Analyzing the nature of the information discovered during the officer’s unlawful conduct provides a principled way to determine whether that information could have “prompted” the officer’s request for consent. Such an inquiry, unlike the majority’s broad, conclusory approach, preserves the rule of Kennedy that prior unlawful police conduct does not automatically render inadmissible any evidence discovered during a subsequent consent search. It also preserves the distinction, formulated in Rodriguez, between mere “but for” causation and exploitation. I believe that Maloney’s request for consent here was not “prompted” by his discovery of an innocuous metal container. Thus, in my view, the court properly denied defendant’s motion to suppress. Accordingly, I dissent.
The majority points to Quinn as a case in which exploitation should have been found, but asserts that the evidence discovered during the unlawful police activity — women’s underwear — “by itself does not indicate illegal activity.” 139 Or App at 537. However, under my approach, the determination as to whether or not there is any indication of possible criminal activities certainly must consider the circumstances in which the information is found. The discovery of women’s underwear in the defendant’s car under the circumstances of Quinn clearly implicated the defendant’s involvement in criminal activities, i.e., residential burglaries or even murder of an elderly woman. Thus, the majority’s and Justice Gillette’s (see State v. Weaver, 319 Or 212, 874 P2d 1322 (1994) (Gillette, J., concurring)) view of Quinn is not inconsistent with my exploitation analysis.
See State v. Rodriguez, 317 Or 27, 854 P2d 399 (1993) (no exploitation where police found no evidence of illegal activity during presumptively illegal arrest); State v. Williamson, 307 Or 621, 772 P2d 404 (1989) (exploitation where police detected the smell of marijuana emanating from truck stopped at illegal roadblock); State v. Wilkinson, 132 Or App 531, 889 P2d 351 (1995) (no exploitation where police found no evidence of illegal activity during illegal arrest); State v. Martin, 124 Or App 459, 863 P2d 1276 (1993) (exploitation where police found methamphetamine during illegal search); State v. Land, 106 Or App 131, 806 P2d 1156 (1991) (no exploitation where illegal entry by police onto defendant’s premises did not yield evidence of illegal activity); but see State v. Quinn, 290 Or 383, 623 P2d 630 (1981) (no exploitation even though police found evidence that, under the circumstances, indicated illegal activity); State v. Jeffers, 125 Or App 596, 866 P2d 486 (1994) (same).
I agree with the majority that our holding in State v. Jeffers, 125 Or App 596, 866 P2d 486 (1994) is questionable. In that case, the police obtained, through their unlawful conduct, information of criminal activities that precipitated their seeking the defendant’s consent to a search.
Reference
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- STATE OF OREGON, Respondent, v. SCOTT ERIC STANLEY, Appellant
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